Fraud Bill [HL]

This amendment, too, touches on the topic that we debated in the previous amendment and I shall not repeat all that I said. This amendment would also widen the offence to include information which there was no legal duty to disclose. It would criminalise behaviour that the Government, at the moment, do not believe should be criminalised. It is correct that the amendment goes back to the Law Commission’s original recommendation, but I have explained why the Government thought it right, contrary to the view of the commission, to draw the line at legal duties. I have identified the two particular points. First, the noble Lord rightly recognises that caveat emptor is a part of the law of the land that underlies many transactions that take place. Many of us might take the view that, occasionally, that principle is abused in a moral sense—that people keep back information that one might well have expected them to disclose. The way that the law deals with those circumstances is to put a premium on asking specific questions to which you insist on getting a specific answer, so that people cannot hide behind non-disclosure. They may still say, ““Well, take it or leave it. I am not going to answer that question””—thus, caveat emptor. The second reason is the question of uncertainty, to which the noble Lord referred. He rightly stated that this is an important area, but it is difficult for that reason. What is the type of information which one could be sure would be of the kind that another person trusted you to disclose? The judgments that would be required under the amendment would seem to me to be too fine and too uncertain to determine criminal liability. We keep returning to the example of the antique dealer who purposely undervalued precious heirlooms belonging to the vulnerable—and I can well understand that many would instinctively wish that to be covered. I suspect that that might be due to the victim’s vulnerability. But that hard case should not lead us to make bad law. As things stand, that case would be covered if, but only if, the antique dealer was employed in a manner that enabled one to say that he was occupying a position for the purposes of Clause 4. The noble Lord asked what that meant. The Law Commission, in paragraph 7.38 identified the types of positions that it had in mind—trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer or between partners. The commission went on to say that the situation might arise in other circumstances: within a family—one can understand that—or in the context of voluntary work or in other cases where the parties were not at arm’s length. But in nearly all of those cases, the civil law would already recognise the existence of fiduciary duties, which would often, but not always, carry obligations of disclosure. So, the best that I can do to answer the exam question set me by the noble Lord, is to say that that is our understanding of what is meant by ““abuse of position”” for the purposes of Clause 4—something within the scope of the type of examples that I have given. While recognising that there may be difficult cases, we believe that it is right to draw the line at legal duty, unless the case comes under another clause in the Bill. That is in line with the results of our consultations and, therefore, we believe that it is right to limit Clause 3 in the way that we have done. I hope that that has been of some help to the noble Lord. As always, if the noble Lord or other noble Lords require further elaboration, I shall do my best to do so after this debate.